Cooper v. Alsco, Inc. ( 2016 )


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  •      OATE._ _--::r--:::=
    Supreme Court Clerk
    ~T.''{!.,,SJ._
    CHIEF .ius·ncli'T'"
    IN THE SUPREME COURT OF THE STATE OF WASHINGTON
    DAVID COOPER and JERRY SCOTT,                )
    individually and on behalf of all those      )     No. 91801-5
    similarly situated,                          )
    )
    Respondents,           )
    )
    v.                                     )     EnBanc
    )
    ALSCO, INC., a foreign corporation,          )
    )
    Appellant.                         )
    _______________________)                           Filed        AUG 0   11   2016
    JOHNSON, J.-This case requires us to determine if Alsco Inc. is a "retail
    or service establishment" (RSE) under chapter 49.46 RCW for purposes of an
    exemption to the overtime pay requirement. See RCW 49.46.010(6). The trial court
    granted the employees' motion for summary judgment regarding entitlement to
    overtime pay, finding that Alsco is not an RSE for purposes of the overtime pay
    exception. In granting the employees' subsequent motion for summary judgment
    on the issue of calculating the amount of overtime due, the court calculated the
    "regular rate of pay" by dividing the total weekly compensation actually paid by 40
    hours, not by hours actually worked. We accepted direct review. We reverse the
    Cooper v. Alsea, Inc., No. 91801-5
    trial court and hold that Alsco is an RSE for purposes of the overtime pay
    requirement.
    FACTS AND PROCEDURAL HISTORY
    Alsco is a textile rental and sales company that supplies uniforms, linens,
    and other products to other businesses in industrial, hospitality, health care, and
    other fields. Alsco does not provide products or services for resale. Alsco and its
    employees are covered by a collective bargaining agreement (CBA). 1
    Alsco provides three services to its customers: (1) the rental and servicing of
    linens and uniforms, (2) the rental and servicing, including repair, replacement, and
    refilling, of washroom and hygiene products, and (3) the direct sale of janitorial
    products, garments, and linens. Its employees deliver clean goods, such as
    uniforms and towels, to other businesses and pick up soiled goods, which Alsco
    takes back to its facilities for washing. Alsco sells some goods to businesses, such
    as mops and paper towels. Both parties agree that Alsco does not provide any
    goods for resale by their customers.
    Alsco employees who deliver and pick up the goods can choose to be paid
    either by the hour or by commission with a base salary. For those who choose to be
    1 No dispute exists that the employees received what the CBA provided. A CBA cannot
    evade Minimum Wage Act, chapter 49.46 RCW, requirements if it applies. See Hisle v. Todd
    Pac. Shipyards Corp., 
    151 Wash. 2d 853
    , 
    93 P.3d 108
    (2004).
    2
    Cooperv. Alsea, Inc., No. 91801-5
    paid on commission, the commission portion comprises over half of their total pay.
    Alsco does not pay commissioned employees any greater compensation for hours
    they work over 40 in a week.
    A class of commissioned delivery employees filed suit against Alsco,
    claiming entitlement to overtime pay under the Minimum Wage Act (MWA),
    chapter 49.46 RCW, and alleging Alsco willfully withheld wages in violation of
    the MWA. Alsco and the employees filed cross motions for summary judgment.
    Alsco argued that it is exempt from paying commissioned workers overtime
    because it is an RSE for purposes of the overtime exemption in RCW
    49.46.130(3). Alsco also claimed it had not willfully withheld wages because the
    commission-based wage system was negotiated as part of the CBA.
    The trial court granted the employees' motion regarding entitlement to
    overtime, finding that Alsco is not an RSE for purposes of the overtime exemption.
    In the same order, the trial court granted Alsco's motion that the alleged wrongful
    withholding of overtime was not willfuF and also denied, without prejudice, the
    employees' motion as to the method for calculating unpaid overtime, leaving that
    issue for later.
    2
    The issue of willful withholding of wages has not been pursued here.
    3
    Cooper v. Alsea, Inc., No. 91801-5
    Next, the trial court certified the questions regarding the applicability ofthe
    retail or service exemption and willful withholding of wages to the Court of
    Appeals, which declined to grant discretionary review. The Court of Appeals
    explained that the trial court could resolve the remaining issues relatively quickly
    and that immediate review would not materially advance the ultimate resolution of
    the litigation. The parties, back in trial court, filed cross motions on the remaining
    issue of how to calculate the amount of overtime owed to the employees by Alsco.
    The court granted the employees' motion and denied Alsco's. The court calculated
    the "regular rate of pay" for overtime purposes by dividing the total weekly
    compensation actually paid by 40 hours rather than all hours actually worked.
    Alsco appealed directly to this court, arguing that there are conflicting
    decisions among the Court of Appeals and a conflict with this court's decisions,
    and that this case involved a fundamental issue of broad public importance
    requiring prompt and ultimate determination. RAP 4.2(a)(4). We accepted direct
    revrew.
    ANALYSIS
    The issue is one of statutory interpretation. We review statutory
    interpretation questions de novo. State v. Azpitarte, 
    140 Wash. 2d 138
    , 140-41, 
    995 P.2d 31
    (2000). Unambiguous statutes are not subject to judicial interpretation; we
    must determining the meaning of the statute based on the statutory language.
    4
    Cooper v. Alsea, Inc., No. 91801-5
    Harmon v. Dep't of Soc. & Health Servs., 
    134 Wash. 2d 523
    , 530, 
    951 P.2d 770
    (1998).
    Alsco contends that its commission-based-pay employees are exempt
    employees under the "retail or service" exemption under the MWA. RCW
    49.46.010(6). Washington's MWA generally requires employers to pay employees
    one and one-half times their regular rate of pay for any hours worked over 40 hours
    in a week. RCW 49.46.130(1). 3 However, at issue here, the MWA expressly
    exempts employees who work for an RSE if their regular rate of pay exceeds one
    and one-halftimes the minimum wage and more than half of the employee's
    compensation represents commissions on goods or services. 4
    The RSE exemption to the MWA states:
    No employer shall be deemed to have violated subsection (1) ofthis
    section by employing any employee of a retail or service
    establishment for a workweek in excess of the applicable workweek
    specified in subsection (1) of this section if:
    (a) The regular rate of pay of the employee is in excess of one
    and one-halftimes the minimum hourly rate required under RCW
    49.46.020; and
    3
    "Except as otherwise provided in this section, no employer shall employ any of his or
    her employees for a workweek longer than forty hours unless such employee receives
    compensation for his or her employment in excess of the hours above specified at a rate not less
    than one and one-halftimes the regular rate at which he or she is employed."
    4
    The statute does not differentiate between sales of services or goods. We similarly make
    no effort to distinguish Alsco' s transactions that are sales of goods from those which are sales of
    servwes.
    5
    Cooper v. Alsea, Inc., No. 91801-5
    (b) More than half ofthe employee's compensation for a
    representative period, of not less than one month, represents
    commissions on goods or services.
    RCW 49.46.130(3) (emphasis added). It is uncontested that the commission-
    based-pay employees here are paid over one and a halftimes the minimum wage
    and that commissions make up over half of their pay. The issue then is whether
    Alsco is an RSE under the statute.
    RCW 49.46.010(6) defines an RSE as "an establishment seventy-five
    percent of whose annual dollar volume of sales or goods or services, is not for
    resale and is recognized as retail sales or services in the particular industry." It is
    undisputed that the products sold by Alsco to other businesses are used by the
    businesses and are not resold to individuals. The dispositive question is whether it
    is "recognized as retail sales or services in the particular industry."
    The trial court reasoned that Alsea's sales are not recognized as retail sales
    or services in the particular industry because they are to other businesses pursuant
    to long term contracts and because Alsco lacks a retail concept. The trial court
    explained that Alsea's customers may be "the end of the line" in the sense that the
    customer's employees wear the uniforms, but they do so only as a means to assist
    their own employers in their efforts to make a profit by selling their own goods or
    services to the general public. In essence, the trial court seemingly determined
    6
    Cooperv. Alsea, Inc., No. 91801-5
    Alsco is not an RSE because it contracts with other businesses on a long term
    basis. That reasoning misreads the statute.
    While there is little guiding Washington precedent on whether a business
    meets the definition of an RSE, we considered whether a vending machine
    business was an RSE in Stahl v. Delicor ofPuget Sound, Inc., 
    148 Wash. 2d 876
    , 
    64 P.3d 10
    (2003). Alsco primarily asserts the trial court's determination that Alsco is
    not an RSE conflicts with our decision in Stahl. In that case, we addressed whether
    sales of goods and services are recognized as retail in the particular industry. In
    Stahl, 95 percent of the employer's revenue came from direct sales to consumers,
    but the question remained whether sales from vending machines were "recognized
    in the industry" as retail sales. 
    Stahl, 148 Wash. 2d at 882
    . We held that vending
    machine sales are recognized as retail sales by the industry, observing that vending
    machine sales are subject to the retail sales tax and are "end of the line"
    transactions between the vending company and the ultimate consumer. 
    Stahl, 148 Wash. 2d at 882
    .
    The factors discussed in Stahl are helpful in the situation present here. First,
    Alsco's sales are taxed under Washington's retail sales tax under RCW
    82.08.0202, which provides:
    [P]roviding customers with a supply of clean linen, towels, uniforms,
    gowns, protective apparel, clean room apparel, mats, rugs, and similar
    items, whether ownership of the item is in the person operating the
    7
    Cooper v. Alsea, Inc., No. 91801-5
    linen and uniform supply service or in the customer [is a retail sale
    and subject to retail sales tax].
    This tax treatment factors heavily in deciding the applicability ofthe RSE
    exemption. It makes sense that if the business transactions are taxed as being retail,
    then the business is, in fact, engaged in retail sales under the exemption. Second,
    Alsco's sales are "end of the line" sales. None of Alsco's goods or services are
    resold. This also weighs heavily in the RSE determination. These factors are those
    on which Stahl focused.
    The distinction between the present case and Stahl is that here, Alsco's
    customers are other businesses, which the trial court focused on in its conclusion
    that Alsco was not an RSE because its business customers used Alsco's products
    and services "as a means to assist their own ... efforts to make a profit by selling
    their own goods or services to the general public." Clerk's Papers at 803. But such .
    a distinction is not found in RCW 82.08.0202. Many businesses sell products to
    other businesses at retail. That Alsco's sales are predominately high volume does
    not control whether those sales are retail. A business can sell services at large
    volume and still be considered retail. High volume sales do not negate the
    definition of"retail."
    While Alsco's "products" do not fit into the category of what one intuitively
    considers retail, the statutory language controls. Alsco provides its customers three
    8
    Cooper v. Alsea, Inc., No. 91801-5
    services: (1) the rental and servicing oflinens and uniforms, (2) the rental and
    servicing of washroom and hygiene products, and (3) the direct sale of janitorial
    products, garments, and linens. These "products" are providing goods and services.
    The statute applies to both goods and services. The statutory definition of"retail"
    undercuts the intuitive sense of what is retail. But we are analyzing those statutory
    definitions. Retail businesses are not limited to establishments where consumers
    enter, take goods off shelves, and purchase at a register. Retail businesses are also
    entities that sell "goods and services." The service here that Alsco provides
    includes supplying uniforms, towels, and linens that the customer purchases or
    rents from Alsco. The core of Alsea's business is selling a "service" in the
    statutory sense, specifically the rental oflinens and garments. The laundering of
    the product by Alsco could be performed by another company or the customer
    themselves. Here, the essence of the transaction subject to the sales tax is the
    providing of the clean linens and unifonus. RCW 82.08.0202 includes "providing
    customers with a supply of clean linens, towels, uniforms, ... and similar items,
    whether ownership of the item is in the person operating the linen and uniform
    supply service or in the customer" as a retail sale and subject to retail sales tax.
    Simplifying the transaction in analyzing RCW 82.08.0202 is somewhat
    helpful. Where a business rents uniforms to a customer for an event, RCW
    82.08.0202 provides that this is a retail transaction. Where the customer is another
    9
    Cooper v. Alsea, Inc., No. 91801-5
    business, the transaction retains its retail treatment. The statute draws no
    distinction between individual versus business customers. The laundering and
    return of uniforms to the customer, under RCW 82.08.0202, is similarly designated
    a retail transaction. The statutory characterization is not affected or limited based
    on the duration of the relationship, the volume of business, or the fact that
    businesses are involved. Under RCW 82.08.0202, no language exists supporting
    the trial court's conclusion.
    Alsco identifies a similar federal case that interprets the Fair Labor
    Standards Act of 1938 (FLSA), 29 U.S.C. §§ 201-219, as exempting business-to-
    business sales of goods or services as retail sales as long as the receiving business
    is the ultimate user. 5 In Alvarado v. Corporate Cleaning Services, Inc., 
    782 F.3d 365
    (7th Cir. 2015), where employees of a window washing business sued their
    employer, seeking overtime pay allegedly due to them under the FLSA, the court
    held that the business met the RSE requirement because it sold its window cleaning
    services to the ultimate customers, even though most of their customers were other
    businesses, namely building owners and managers. Particularly instructive here,
    the court in Alvarado rejected the argument that the window washing companies'
    5 Because  the MWA is patterned on the FLSA, we will often turn to federal authority
    interpreting the FLSA for guidance. See 
    Hisle, 151 Wash. 2d at 862
    n.6 (recognizing that the FLSA
    is persuasive authority because the MWA is based on the FLSA).
    10
    Cooper v. Alsea, Inc., No. 91801-5
    services were not retail because other business used the services to make a profit,
    explaining:
    It would be absurd to suggest that a dealer in motor vehicles, when it
    sells a truck to a moving company, is "wholesaling" the truck because
    the buyer will doubtless try to recover the cost of the purchase in the
    price he charges for his moving services, which utilize the truck.
    
    Alvarado, 782 F.3d at 369
    . This case and the factors analyzed in Stahl support the
    determination that Alsco is an RSE.
    The employees argue that Alsco is not an RSE because most of its business
    involves long term contracts and high-volume sales. They cite federal regulations
    implementing the FLSA that provide an RSE is one that typically "sells goods or
    services to the general public ... in small quantities" and that generally "will not
    be considered a retail or service establishment ... if it is not ordinarily available to
    the general consuming public." 29 C.P.R. §§ 779.318(a), § 779.319. However,
    those same regulations also provide that the retail exemption is intended to "extend
    in some measure beyond consumer goods and services to embrace certain products
    almost never purchased for family or noncommercial use." 29 C.P.R. § 779.318(b).
    Further, federal courts have recognized that "'[d]espite this reference to supplying
    goods and services to the general public, ... the provision of goods and services to
    commercial customers does not necessarily prevent an establishment from
    qualifying as a retail or service establishment."' Charlot v. Ecolab, Inc., 
    136 F. 11
    Cooper v. Alsea, Inc., No. 91801-5
    Supp. 3d 433 (E.D.N.Y. 2015) (first alteration in original) (quoting Kelly v. AI
    Tech., No. 09 Civ. 962(LAK)(MHD), 
    2010 WL 1541585
    , at* 12 (S.D.N.Y. Apr.
    12, 2010) (court order) (holding that the supplier of cleaning and related equipment
    to restaurants, hotels, and other businesses may be an RSE for purposes of
    commission-based-pay employee exemption under FLSA)).
    Importantly, the federal regulations cited by the employees do not directly
    control interpretation of our state's MWA, and we find no language in the
    definition of an RSE under our act restricting the definition to businesses that sell
    to individuals. Like the MWA, the FLSA requires overtime pay of one and one-
    halftimes the regular rate for every hour worked beyond 40. 29 U.S.C. § 207(a)(l).
    Alsco correctly points out that the FLSA does not require that a business sell to
    individuals to qualify as an RSE. And, Congress amended the FLSA in 1949 to
    specifically allow business-to-business sales to qualify as retail sales.
    After the 1949 amendments, the definition of "retail sales" was broadened to
    include sales to customers who are businesses in addition to individuals. Ch. 736, §
    3, 63 Stat. 911; see Schultz v. Crotty Bros. Texas, 310 F. Supp. 761,766 (B.D. Tex.
    1970) ("There can be no question that [the 1949] amendments have broadened the
    scope of the§ 13(a) (2) exemption."). Congress replaced the previous "consumer
    use" test when it amended the FLSA in 1949 to allow employers who sell goods
    12
    Cooper v. Alsea, Inc., No. 91801-5
    and services to other businesses to qualify for the retail sales exemption. Ch. 736, §
    3, 63 Stat. 911.
    Since then, federal courts have held that the retail sales or service
    establishment exemption under the FLSA applies to employers engaged in
    business-to-business sales even where the business engages in those types of sales
    exclusively. In Idaho Sheet Metal Works, Inc. v. Wirtz, 
    383 U.S. 190
    , 
    86 S. Ct. 737
    15 L. Ed. 2d 694 
    (1966), the Court held that a tire merchant was not an RSE on the
    basis that it sold tires at discount prices to businesses for use on their vehicle fleets.
    The employees draw a comparison between Alsea's large volume contracts and the
    equipment sold in Idaho Sheet Metal. However, the decision in Idaho Sheet Metal
    was guided not by the volume of sales in question, but by the secretary of labor's
    rule specifying that sales to fleets of five or more vehicles at wholesale prices are
    not retail sales. Idaho Sheet 
    Metal, 383 U.S. at 208
    . The Idaho Sheet Metal opinion
    noted that the secretary's rule was intended to further specific legislative intent to
    exclude certain types of sales made at deep discounts and in quantity. See Idaho
    Sheet 
    Metal, 383 U.S. at 192-93
    . In this state, no similar rule excluding businesses
    that sell in quantity from the RSE definition under the MWA exists. Idaho Sheet
    Metal is not that helpful because that case involved a former version of the FLSA,
    under which all retail employees were exempt from overtime pay requirements, not
    just those paid on commission.
    13
    Cooper v. Alsea, Inc., No. 91801-5
    Additional federal cases support Alsco's position. English v. Ecolab, Inc.,
    No. 06 Civ. 5672,2008 WL 878456 (S.D.N.Y. Mar. 31, 2008) (court order), held
    that sales to other businesses pursuant to long term contracts-in that case, pest
    extermination services-were retail sales. The employees attempt to distinguish
    this case by pointing to the facts that the exterminators were free to set their own
    schedules, which would allow them to "game" the overtime system, and that they
    were skilled workers, so the company could not hire more workers to avoid
    overtime. However, whether the employees do or do not control their schedules is
    not helpful in deciding whether the exemption applies. As we discussed in Stahl,
    an employee's job duties do not affect whether he or she is paid a bona fide
    commission for purposes of the retail service exemption. An employee who has no
    involvement in sales is exempt from overtime as long as the employee's
    commission is tied to the amount charged to the customer and the remaining
    requirements of the exemption are met. 
    Stahl, 148 Wash. 2d at 886-87
    .
    The employees point out that the businesses in English that purchase the pest
    extermination services primarily benefit from those services, as opposed to the
    individuals who patronage the ostensibly pest-free businesses. But the employees
    cite no authority that the RSE determination turns on who receives the benefit. As
    Alsco points out, such a definition would mean that a business-to-business sale
    14
    Cooperv. Alsea, Inc., No. 91801-5
    could never be retail, which, as explained above, is contrary to both federal and
    Washington law.
    In an attempt to further distinguish the present case from English, the
    employees cite to another federal case. Cancilla v. Ecolab, Inc., No. C 12-03001
    CRB, 
    2013 WL 1365939
    (N.D. Cal. Apr. 3, 2013) (court order) (denying Ecolab's
    summary judgment motion asserting the RSE; Ecolab eventually settled following
    certification of an FLSA collective action). The facts in Cancilla are
    distinguishable from the present case. Unlike the service technicians involved in
    that case, who had no way to increase their compensation, the employees here can
    and do sell more products to increase their commission-based pay.
    Lastly, the employees rely on four federal cases in support of their argument
    that Alsco's sales should not be recognized as retail because Alsco limits its
    operation to long term volume rental to commercial customers. Resp'ts/Pls.' Resp.
    to Appellant Alsco Inc.'s Opening Br. at 13; see Idaho Sheet 
    Metal, 383 U.S. at 206
    ; Martino v. Mich. Window Cleaning Co., 
    327 U.S. 173
    , 66 S. Ct. 379,90 L.
    Ed. 603 (1946); Schultz v. Instant Handling, Inc., 
    418 F.2d 1019
    (5th Cir. 1969);
    Acme Car & Truck Rentals, Inc. v. Hooper, 
    331 F.2d 442
    , 447-48 (5th Cir. 1964).
    All four of these cases rely on a definition of an RSE under a section of the FLSA
    that was repealed in 1989. Pub. L. No. 101-157, 103 Stat. 939. Under the previous
    section 213(a)(2) of the FLSA, RSE was defined to include those employers who
    15
    Cooperv. Alsea, Inc., No. 91801-5
    operated only on a small scale in the local community, so-called "mom and pop"
    businesses. Section 213(a)(2) did not require that employees be paid on a
    commission basis because that section was not concerned with the exempt status of
    employees paid on a commission, unlike the exemption at issue here. Significantly,
    Congress repealed section 213(a)(2) in 1989. Pub. L. No. 101-157, 103 Stat. 939.
    Federal courts in those previous cases necessarily found that the businesses were
    not RSEs because the definition of an RSE was much narrower. Since this
    provision was repealed, these cases are not helpful. High volume sales no longer
    control; a business now can sell a larger or smaller quantity of goods and services,
    which does not negate the definition of"retail."
    Under the statute, the exemption extends to businesses where its customers
    are other businesses, as long as its sales are not for resale and are recognized in the
    industry as retail-in other words, as long its sales are subject to the retail sales
    tax, its sales are "end of the line" transactions, and the goods and services being
    sold are not for resale. 6 Alsco meets these requirements. We reverse and remand
    6
    The statute is limited by its own terms; the RSE exemption applies only if the employer
    is an RSE and the employees' regular rate of pay exceeds one and one-half times the minimum
    wage, and more than half of the employees' compensation represents commissions on goods or
    services. Any concern about an ostensibly broad definition of an RSE is tempered by the other
    wage-based statutory requirements to the exemption.
    16
    Cooperv. Alsea, Inc., No. 91801-5
    for entry of judgment for Alsco. 7
    WE CONCUR:
    7 Because we hold that Alsea is an RSE and therefore its employees are not entitled to
    overtime pay, we need not address whether the trial court erred in detem1ining the formula for
    calculating the overtime rate.
    17